EXHIBIT 4.2
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
xxxxxxxx.xxx, inc.
August , 1998
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT (the "Amendment") is entered into as of the __ day of August,
1998, by and among xxxxxxxx.xxx, inc., a Delaware corporation (the
"Company"), and the Investors, as defined in the Second Amended and
Restated Investor Rights Agreement (the "Agreement"). Capitalized items
used herein and not otherwise defined shall have the meanings ascribed
thereto in the Agreement.
W I T N E S S E T H:
-------------------
WHEREAS, the Investors hold registration and information rights
pursuant to the Agreement;
WHEREAS, pursuant to Section 2.10 of the Agreement, the holders of a
majority in interest of the Registrable Securities desire to amend the
provisions of Section 2 of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
The first paragraph of Section 2.2 of the Agreement is hereby deleted
in its entirety and is replaced with the following:
2.2 PIGGYBACK REGISTRATIONS. Except in connection with an
Initial Offering, the Company shall notify all Holders in writing
at least fifteen (15) days prior to the filing of any
registration statement under the Securities Act for purposes of a
public offering of securities (other than non-convertible debt
securities) of the Company (excluding registration statements
relating to employee benefit plans or with respect to corporate
reorganizations or shares sold in connection with an acquisition,
including other transactions under Rule 145 of the Securities
Act) and will afford each such Holder an opportunity to include
in such registration statement all or part of such Registrable
Securities held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the
Registrable Securities held by it shall, within fifteen (15) days
after the above-described notice from the Company, so notify the
Company in writing. Such notice shall state the maximum number of
Registrable Securities intended to be included in such
registration and the intended method of disposition of the
Registrable Securities by such Holder. If a Holder decides not to
request inclusion of all of its Registrable Securities in any
registration statement thereafter filed by the Company, such
Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent such registration
statement or registration statements as may be filed by the
Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein. Notwithstanding the
foregoing, nothing in this Section 2.2 shall be deemed to convey
upon any Holder the right to include in any registration
statement filed in connection with an Initial Offering all or
part of such Holder's Registrable Securities.
Paragraph (a) of Section 2.2 of the Agreement is hereby deleted in its
entirety and is replaced with the following:
(a) UNDERWRITING. If the registration statement under which
the Company gives notice under this Section 2.2 is for an
underwritten offering, the Company shall so advise the Holders.
In such event, the right of any such Holder to be included in a
registration pursuant to this Section 2.2 shall be conditioned
upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. Each Holder proposing
to distribute its Registrable Securities through such
underwriting shall enter into a custody agreement and power of
attorney authorizing the Company to sell the Registrable
Securities to be offered by such Holders and to execute on the
Holder's behalf an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by
the Company. If any Holder is or will be unable to deliver any
document reasonably required by the underwriters to register such
Registrable Securities, then the Company shall have no obligation
to include such Registrable Securities in such registration.
Notwithstanding any other provision of the Agreement, if the
underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten,
the number of shares that may be included in the underwriting
shall be allocated as follows: first, to the Company for its own
account; second, to the holders under the Company's Registration
Rights Agreement, dated as of August ____, 1998 (the
"Registration Rights Agreement"), and Holders on a pro rata basis
based on the total number of Registrable Securities held by such
persons; and third, to any stockholder of the Company (other than
a Holder or a holder under the Registration Rights Agreement) on
a pro rata basis. No such reduction shall reduce the securities
being offered by the Company for its own account to be included
in the registration and underwriting. In no event will shares of
any other selling stockholder be included in such registration
which would reduce the number of shares which may be included by
Holders without the written consent of Holders of not less than
two-thirds (66 2/3%) of the Registrable Securities proposed to be
sold in the offering.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 1 to Second Amended and Restated Investor Rights Agreement as of the
date set forth above.
xxxxxxxx.xxx, inc. Dancing Bear Investments, Inc.
By: By:
------------------------------- ------------------------------
Xxxx X. Xxxxxxxxx Name:
Co-Chief Executive Officer and Title:
Co-President
Xxxxxx Xxxxxxxx
By:
-------------------------------
Xxxxxxx X. Xxxxxxxx
Co-Chief Executive Officer,
Co-President and Secretary ------------------------------
Xxxxx Xxxxxxxx
------------------------------
